How copyright law is holding back Australian creators

It might finally be time to rewrite the copyright rule book, as a new study reveals frustration around Australia's strict laws, explain Kylie Pappalardo and Karnika Bansal in this crossposting from The Conversation.

Australian creators struggle to understand copyright law and how to manage it for their own projects. Indeed, a new study has found copyright law can act as a deterrent to creation, rather than an incentive for it.

Interviews with 29 Australian creators, including documentary filmmakers, writers, musicians and visual artists, sought to understand how they reuse existing content to create. It considered issues such as whether permission (“licences”) had been sought to reuse copyrighted content; the amount of time and cost involved in obtaining such permissions; and a creator’s recourse if permission was either denied or too expensive to obtain.

For the majority interviewed, seeking permission to reuse copyrighted content – for example, as snippets of music or video in films, or long quotes in written works – was a source of great frustration and confusion. The process was variously described as “incredibly stressful”, “terrifying” and “a total legal nightmare”.

Problems mostly centred on time delays and financial expenses. Creators found that the paperwork required to request permission was often long, complex and not standard across publishers and other rights-holder bodies. Many waited months for a response to a request; some never received one at all. Many reported feeling ignored and disrespected.

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One interviewee, a composer, waited over a year for permission to set poetry to music. The music was due to be performed in a theatre production. The original poet was deceased but his publisher controlled the copyright.

After waiting months and not receiving a response, the composer was forced to painstakingly replace the words to the song with new ones that fit the same rhyme scheme, stresses, cadences and meaning as the original poem. This was a long and difficult process. Roughly a year after the play was staged, permission to use the poem came through from the publishers. By then it was too late.

Licence fees were also an issue for the creators interviewed. Licence fees can be expensive, even for very small samples. Many creators thought that copyright fees demanded for reusing small samples were unfair and stifling.

Projects abandoned

A filmmaker making a documentary about a small choir in rural Australia could not afford the licence fees to release the film to the public. To show snippets of songs sung by the choir, totalling less than two minutes of copyrighted music in a 20-minute film, with each snippet only seconds in length, the licence fees came to over $10,000. The project was ultimately abandoned because the filmmaker could not raise the funds to cover the licensing fees.

Faced with costly licence fees, one filmmaker had to abandon the project.Shutterstock

Avoiding and abandoning projects were common reactions to the restraints imposed by copyright law, although a very small number of creators proceeded anyway, hoping to “fly under the radar”.

Some changed projects to try to circumvent copyright restrictions. For example, filmmakers might degrade the sound on their films for scenes where background music might be playing, such as those filmed in a pub or restaurant.

Ideas were filtered out early at the brainstorming stage because they were “too risky” or licensing would be “too expensive”. Some people avoided entire areas of creativity, such as appropriation art, music sampling or documentaries about music or musicians, because it was all just “too hard”.

Court decisions such as the 2010 “Kookaburra” case have further aggravated the problems. In this case, despite significant elements of original creativity, the Australian band Men at Work were found to have infringed copyright of a 1934 folk song, Kookaburra Sits in the Old Gum Tree.

This case is a classic example of the gap that exists between law and creative norms. The law’s concern, in that case and others, is with what has been taken from an existing work. Creators, on the other hand, most commonly focus on the elements they have added to the work.

The study also highlights creators’ confusion about the scope and application of Australian copyright law. Creators were especially confused about legal exceptions to copyright infringement. In Australia, these are called “fair dealing” exceptions and they are narrow – they apply only to specified purposes (such as for research and study; parody and satire; reporting the news; and criticism and review).

Creators expressed concern about what, exactly, fell within “parody and satire” or “criticism or review”. What do those terms mean when applied to art? Once participant remarked: “Everybody is out there flying a bit blind about this.”

Other countries, including the United States, South Korea and Sri Lanka, have broader exceptions to copyright infringement, which permit reuse for things such as remix or appropriation art, provided that the use is “fair”. These exceptions are generally called “fair use”. Importantly, these exceptions do not require the use to fall within a predetermined category, like reporting the news. Each use is assessed on its own merits.

Courts apply some basic standards in determining what amounts to “fair use”, which include examining the purpose for which an original work has been used; the extent to which it has been transformed; and the extent to which a new work impacts on the market of the original work.

In recent years, the Australian Law Reform Commission and Productivity Commission’s recommendations that Australia adopt a US-style fair use exception attracted significant criticism from much of Australia’s creative sector. Many considered that such an exception would be too broad and too uncertain. However, the study suggests this criticism may be largely unfounded.

The creators interviewed used their own strong sense of morality and fairness to guide what reuse they considered to be acceptable. These principles and norms align quite closely with the factors that courts use in assessing fair use, including how much new creativity has been added to the existing work and whether the new work commercially impacts the existing work in an unfair way.

This new study suggests that more flexibility in the law might actually help to spur the creation of new Australian work.

The problem is not such an old one, it has become more and more difficult over the last 30 years or so. The problem is complex, but a simple view is to look at the so called watch dogs. Money is paid for the silliest of copyright reasons, for instance, a hair dresser must pay to play recorded music in his/her salon while you are having your hair done; it is arguable that this is beneficial to the recorded work, as it is playing to a captive audience, and not being charged for.

The arts, beyond the major players, have never been considered until very recently, as a viable entity, so governments have ignored the need for secure regulations, groups have been allowed to step in and form royalty collection bodies with almost carte blanche demands. Many lawyers and accountants who have found themselves responsible for royalties, have little idea how to negotiate, or lack understanding of the creative process.

We are caught between two camps, those who think that music and poetry are not important enough to have a price, and those who seek to section the arts into one meter lengths, with a set value per centimeter.

You have well and truly hit the nail on the head. The reaction of lawyers in relation to their understanding of ‘Proof of Copyright Ownership’, is analogous to the work of check-out operators at supermarkets. Just like the “Rule of the Bar Code” is paramount for check-out operators without having to use their brain, single minded lawyers are quick to argue that the “Rule of Law” is paramount for ALL copyright disputes … indiscriminately – even when the particular “Law” to which the term “Rule of Law” is made to apply is totally out of touch with modern times.

It needs to be remembered that the original Australian Copyright Act, 1968 was written at a time when the Internet and search engines did not exist. So, even when plagiary of an original artistic work has taken place and the said original artistic work has already been published (or exploited by the plagiarists in the form of a cinematographic film) single minded lawyers insist that the only method available to an author to provide “proof of authorship” in his/her original artistic work is through the presentation of the said work in the form of a manuscript in hard copy written form. Common sense among lawyers is totally absent in this regard, since a copy of a manuscript in hard copy written form can be fraudulently fabricated from a book obtained from a book store or from the DVD of the film at point from a video store.

Every educated person in the entire world today, would – indiscriminately – agree that by typing an average of four (4) to five (5) key words in a search engine search box, when searching for one only probability among an unlimited amount of probabilities, the result obtained is 100% accurate. All lawyers (invariably) have a tendency to apply the law like they would apply a rubber stamp. They still insist that the only method available to an author to provide ‘Proof of authorship’ in the 21st century is by means of a manuscript in hard copy written form … as if people always write down the content of their SMS by using pen and paper before they actually send their text message on their mobile phone.

Lawyers do not seem to be aware that literary merit and/or content in the form of trivia added to the original content of an original artistic work are not essential for copyright to subsist, since copyright is essentially about the original expression that is contained in an original artistic work. A good example of this is the film “Pretty Woman” which was based on the song with the same title and created by Roy Orbison.

When it comes to identifying the true author of an original work who has inserted several hundred sets of key words in his original artistic work to identify himself as the true author, lawyers are at a total loss when trying to understand the logic provided by the workings of the algorithms of computer algebra. A perfect example of the inadequacy of the Law in this context is the plagiary of the original artistic work for the film “Crocodile Dundee”. This original artistic work was recorded on an audio magnetic tape recording device so as to provide the maximum amount of detail that was pertinent to the directives offered by the author to the producer and director for the making of this particular film.

As a suggestion for a solution to the problem : (1) The monopoly that the legal profession has created for itself with regards to the administration of Justice should be abolished as per the statute of monopolies enacted in 1624 under the reign of James the 1st – Lawyers could perhaps be replaced by intelligent people who possess a reasonable amount of common sense. Another suggestion as a solution to the problem : (2) The abrogation of Part IX of the Australian Copyright Act, 1968 which states that the “Author” of a cinematographic film is the film maker, despite the fact that a film is not an original work but a copy of a film-script which in turn is a copy of an original story.

Such an absurd “Law” enacted by the Federal Government in 2000 is similar to saying that the legitimate mother of a new born child is the mid-wife and not the biological mother.

This article and indeed this study is like a rerun of the very good movie with Sandra Bullock playing the protagonist “Our brand is crisis”.
It’s a movie where the need is created by the very people that seek to fill that need. If you click through to the various links to get to the study in question, you will see that the primary funding and the first name is the Australian Digital Alliance. In their own words, “The internet age challenges our copyright framework as the chief means of regulating the creation, distribution and use of information.” so where there is an implication of an independent study done to gauge the impact and the limitations to our copyright legal frameworks, the guys footing the bill are probably going to have a biased view. Then reading the article as a reflection on the actual study reads thus. Some guy said this, and another guy said that, this other guys actually had to do some work to do some other stuff and it took him a year to do that but then did something else. If someone was offered a lucrative contract and took a year or longer to ask for permission, then changing copyright laws will not really help there. Lastly “The creators interviewed used their own strong sense of morality and fairness to guide what reuse they considered to be acceptable. These principles and norms align quite closely with the factors that courts use….”
This is a worrying tidbit offering a moral and fairness comparative of a supreme court Judge and David Lee Roth, as both are rolls that are chosen by individuals of exceptional moral character. Can you see Wagner assisting at Nuremberg or The Marquis de Sade as a consultant on the children’s court? Degas, a painter often praised for his warmth and humanity, was an anti-Semite and a staunch defender of the French court that falsely convicted Alfred Dreyfus.
I only wonder at journalistic impartiality in this article or too was it funded by the ADA.

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